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THIS DECISION IS MADE, ADJUDGED AND PRONOUNCED PUBLICLY BY THIS COURT, COMMUNITY COURT OF JUSTICE, ECOWAS; SITTING AT ABUJA, NIGERIA ON THE DAY 20th January, 2020. Hon. Justice Edward Amoako ASANTE, Presiding Hon. Justice Gberie-Be OUATTARA, Member Hon. Justice Keikura BANGURA, Rapporteur Mr Tony Anene MAIDOH, Chief Registrar 39

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THE REPUBLIC OF THE GAMBIA2

ECW/CCJ/JUD/01/20 Ousainou Darboe & 31 Ors v Gambia

ECOWAS Court

Preview

ECCJ App no.: ECW/CCJ/APP/27/1

ECCJ Jud No.: ECW/CCJ/JUD/01/20

Type of Document

Judgement

Keywords

Arbitrary Arrest and Detention
Civil and Political Rights
Cruel and Degrading Treatment
Death in custody
Democracy
Detention Facilities/Conditions
Elections / Referendums
Extra-Judicial Killings
Freedom of Assembly
Freedom of Association
Freedom of Expression / Digital Rights
Inadequate/Inappropriate Legal Provisions
Murder/Assassination
Participation in Government
Personal Liberty
Police Brutality and Offences
Right to Dignity
Right to Fair Trial
Right to Life
Torture and Ill Treatment
Use of force
Women's Rights

Country

Gambia

Outcome: Decided on Merits

Year Decided: Jan 20, 2020

African Charter Rights Alleged to be Violated

ACHPR 7: Right to Fair Trial
ACHPR 10: Right to Freedom of Association
ACHPR 11: Right to Freedom of Assembly
ACHPR 13: Right to Participate in Government
ACHPR 4: Right to Life and Integrity
ACHPR 5: Cruel Inhuman and Degrading Treatment
ACHPR 6 : Right to Personal Liberty and Protection from Arbitrary Arrest

African Charter Rights Violated

ACHPR 5: Cruel Inhuman and Degrading Treatment

African Charter Rights Not Violated

ACHPR 7: Right to Fair Trial
ACHPR 11: Right to Freedom of Assembly

Duration of Procedure: ~ Jan 20, 2020

Country Geolocation

Latitude: 13.443182

Longitude: -15.310139

Country Geolocation (linked ECOWAS Court): Gambia

Primary Documents

JUD-ECW-CCJ-JUD-01-20-OUSAINOU-DARBOE-JUDGEMENT-FINAL-20-January-2020-3.pdf
English
ML TOC
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African Charter on Human and Peoples' Rights (Banjul Charter)

Article 101.Every individual shall have the right to free association provided that he abides by the law. 2.Subject to the obligation of solidarity provided for in 29 no one may be compelled to join an association. Article 11Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular thoseenacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 131.Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2.Every citizen shall have the right of equal access to the public service of his country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 4The Rights to Life, Integrity and Security of the Person1.Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 25RemediesStates Parties shall undertake to:a)providefor appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated;

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 25RemediesStates Parties shall undertake to:a)providefor appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated;

Treaty

ECOWAS Protocol on Democracy and Good Governance

) Political parties shall be formed and shall have the right to carry out their activities freely, within the limitsof the law. Their formation and activities shall not be based on ethnic, religious, regional or racialconsiderations. They shall participate freely and without hindrance or discrimination in any electoralprocess. The freedom of the opposition shall be guaranteed. Each Member State may adopt a system forfinancing political parties, in accordance with criteria set under the law.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 11Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular thoseenacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. Article 71.Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. 2.No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 25RemediesStates Parties shall undertake to:a)providefor appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated;

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 2Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, color, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECOWAS Protocol on Democracy and Good Governance

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/03/07 Moussa Léo Kéita v. Mali

ECOWAS Court

ECW/CCJ/JUD/16/14 SERAP & 10 Ors v. Nigeria & 4 Ors

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 4Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Treaty

ECOWAS Protocol on Democracy and Good Governance

j) The freedom of association and the right to meet and organise peaceful demonstrations shall also beguaranteed.

Treaty

ECW/CCJ/JUD/13/19 Karim Meissa Wade v Senegal

ECOWAS Court

ECW/CCJ/JUD/24/19 Dr. George S. Boley v. Liberia & 3 Ors

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 25RemediesStates Parties shall undertake to:a)providefor appropriate remedies to any woman whose rights or freedoms, as herein recognised, have been violated;

Treaty

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (Maputo Protocol)

Article 3Right to Dignity1.Every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights.2.Every woman shall have the right to respect as a person and to the free development of her personality.3.States Parties shall adopt and implement appropriate measures to prohibit any exploitation or degradation of women.4.States Parties shall adopt and implement appropriatemeasures to ensure the protection of every woman’s right to respect for her 6dignity and protection of women from all forms of violence, particularly sexual and verbal violence. Article 4The Rights to Life, Integrity and Security of the Person1.Every woman shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

ECOWAS Protocol on Democracy and Good Governance

j) The freedom of association and the right to meet and organise peaceful demonstrations shall also beguaranteed

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/05/12 Barthelemy Toye Dias v. Senegal

ECOWAS Court

ECW/CCJ/JUD/02/12 Femi Falana & Anor v Benin & 2 Others

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/20/18 - Gabriel Inyang & Linus Iyeme v Nigeria

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/04/18 - Federation of African Journalists and Others v The Gambia

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

European Convention on Human Rights

ARTICLE 3Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment

Treaty

European Convention on Human Rights

ARTICLE 3Prohibition of tortureNo one shall be subjected to torture or to inhuman or degrading treatment or punishment

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

International Covenant on Civil and Political Rights ICCPR

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legalassistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt.

UN Document

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

European Convention on Human Rights

ARTICLE 6Right to a fair trial1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.3. Everyone charged with a criminal offence has the following minimum rights: 1011(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;(b) to have adequate time and facilities for the preparation of his defence;(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

International Covenant on Civil and Political Rights ICCPR

Article 141. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legalassistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt. 4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. 5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. 6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person whohas suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him. 7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

UN Document

International Covenant on Civil and Political Rights ICCPR

Article 61. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. 2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court. 3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide. 4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

UN Document

ECW/CCJ/JUD/17/19 His Lordship Justice Paul Uuter Dery & 2 Ors v. Ghana

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

rticle 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/04/18 - Federation of African Journalists and Others v The Gambia

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

European Convention on Human Rights

ARTICLE 11Freedom of assembly and association1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

ECW/CCJ/JUD/07/11 Ocean King NIG LTD v. Senegal

ECOWAS Court

ECW/CCJ/JUD/03/07 Moussa Léo Kéita v. Mali

ECOWAS Court

ECW/CCJ/JUD/03/05 Jerry Ugokwe v. Nigeria

ECOWAS Court

ECW/CCJ/JUD/05/11 Centre for Democracy and Development & Center for Defence of Human Rights and Democracy v Mamadou Tandja & Niger

ECOWAS Court

ECW/CCJ/JUD/08/10 Musa Saidykhan v The Gambia

ECOWAS Court

ECW/CCJ/JUD/04/20 The Reg. Trustees of Jama'a Foundation & 5 Ors v. Nigeria & The Attorney General and Minister of Justice of The Federation

ECOWAS Court

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Article 5Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited. Article 6Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

Treaty

African Charter on Human and Peoples' Rights (Banjul Charter)

Treaty

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- UN Document3
International cases/decisions16
- ECOWAS Court16
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